an open-source thought experiment in psychedelic law and policy

The medical bill: New Yorkers should fight against the amended Senate version – not retreat under fire from the Senate Republicans

As I have said before, I consider the medical use-only bill (the Gottried-Savino “Compassionate Care Act”) a waste of time since I don’t believe the Republicans will actually allow it to pass, because a series of amendments made in each year it was introduced have made the bill unnecessarily restrictive (and likely laying a a flawed foundation for the regulatory system that will require ongoing reform) and it will be counterproductive to meaningful reform if it does pass, and without an individual cultivation provision it means nothing: patients will still not be able to access cannabis through direct self-help because the option of growing a plant will remain illegal.

The amended Senate bill

Senator Savino recently introduced an amended bill into the Senate. As revised, the bill is worse and needlessly so. I assume that these revisions are being extracted unwillingly from Senator Savino and so the Republicans (Kemp Hannon, backed by Dean Skelos) are at fault.

The revisions for the most part seem to be totally arbitrary.

Limitation on conditions

The bill now limits the number of conditions for which a physician can recommend cannabis (so that a patient can apply to be registered with/licensed by the Department of Health). See Section 3360(7). The previous bill counted off certain conditions as examples and then said “including but not limited to,” i.e. a physician could exercise maximum discretion in deciding whether an individual patient would benefit from cannabis and in what form.

The bill gives to an advisory committee (discussed further below) the job of recommending to the Commissioner of Health whether to add or subtract conditions from the list of “serious conditions” for which a patient may use cannabis. Under the terms of the statute the advisory committee must include law enforcement, industry professionals and drug regulators. Why should the decision whether to allow a patient to obtain cannabis for a condition not in the official list (i.e. expanding the list) require input from police and industry professionals let alone drug regulators?

Why does the amended bill restrict practitioner discretion at all?

Why would the legislature micro-manage the practice of medicine in that way?Arbitrary?

Changes to the function of the Advisory Group

Back in June of last year, before the latest round of bad revisions begin, I said that the advisory group that the Commissioner of Health will be directed to form is a really good part of the bill.

The function of the advisory group in the original bill was to advise the Commissioner in promulgating regulations, which will be the next major effort after the bill is passed. The amended Senate bill now assigns two new functions to the advisory group that I consider inappropriate. The changes on wish I wish to focus basically turn this working group, which is presumably only temporary or as-needed by the Commissioner, into a permanent administrative law tribunal.

The first one is adding or removing different conditions from the list of conditions for which a patient can be issued an ID card, as discussed above.

The second one is something that seems to turn this group, that is supposed to consist of various experts and stakeholders, into an appellate panel inside an administrative agency: it assigns to this working group responsibility for reviewing appeals by patients and designated caregivers from agency decisions denying applications for ID cards.

The CCA thus creates a two-step appellate process in order to challenge denial of a registry identification card. (A patient must have this state-issued ID card in order to obtain cannabis from a store under the CCA – since it does not permit individual cultivation.) The patient must submit the appeal first to the advisory committee, which reviews the appeal and sends its recommendations to the Commissioner. This system is instead of simply creating an administrative appeals process within the Department.

Why create an extra step in the process of appealing denial of a patient’s application to obtain cannabis (when the patient should be able to grow the plaint)?

Why in the world would an advisory group that is supposed to assist the Commissioner of Health in formulating regulations also be charged with acting as an appellate tribunal in an administrative agency?

Who would want to sit on such a panel?
How many appeals will there be?Instead of agreeing to participate in a series of meetings to draft proposed regulations you would agree to be sucked into acting as a judge for a caseload of appellants – with no sense of what volume of cases there might be.

How much money will it cost to route those appeals through an advisory committee whose primary task is advising the Commissioner in formulating regulations?

Why wouldn’t this type of appeal be heard by an appellate panel that exists within the Department?

What was the rationale behind that change?

There is still a statutory limit on the number of cultivators that can be licensed in the first two years

The version of the bill introduced last June set a maximum number of ten cultivators for the first two years in the law is effective. I explained that I thought that provision was so bad that the bill should not be passed.

The amended version of the bill (see Section 3365(9) now raises the limit to 20.

That’s better but ultimately so what?

What is the rationale for a statutory – as opposed to regulatory – limit on the number of cultivators that can be registered? Who cares what the number is – is there any valid rationale for a statutory limit?

Was there an attempt to project the demand in New York and the distribution of that demand across the state and an attempt to project what type of operations would be necessary to meet the demand?

Arbitrary?

Proposal for an activist agenda: make demands

The revisions to the bill only take, they don’t give.

It would be appropriate to stop being on the defensive and fight back.

The problem with the CCA is that there is now a much better option – Senator Liz Krueger and Assembly Member Crystal Peoples-Stokes’ full legalization bill.

If there is going to be further effort into passing the medical use-only bill, then it should be dedicated to passing a good bill not a bad one.

Here is what I propose as an activist agenda:

(1) The Republicans in the Senate Health Committee must be made to explain what is the rationale for the latest set of amendments to the bill. Then we will know whether they are legitimately trying to solve problems that likely could be solved in a less restrictive way or if they are simply toying with the process with the intention of stonewalling a legal cannabis market for another year.

It is worth knowing whether the representatives of the people have a methodology when they pass laws or they just kinda wing it – or if perhaps they are trying to thwart the process.

(2) At a minimum, activists should demand that an individual patients’ right to grow be put back.

Many years back (at least 2007, maybe even more recently) the bill protected the right of an individual patient to cultivate cannabis and his/her designated caregiver to cultivate cannabis for the patient. That provision was eliminated. Since at least 2010, the bill allows only corporate entities to cultivate.

Protection of the right to individual cultivation should be restored because:

(a) if you are really reforming cannabis law, then recognize that it’s insane to ban a plant, and

(b) even if the current CCA passes, patients will not experience immediate relief. The next step will be to draft the regulations that will govern licensing of the corporate entities that will be the allowed to cultivate and it could be a year from the date on which the law takes effect to register the cultivators. As happened in NJ, patients will be stuck without a legal source during the process of enacting regulations. How long after that will the cultivators be able to begin distributing the product?

We can already anticipate that the likely emergence of mega-farms (due to the limit of 20 cultivators) in the first two years will keep prices artificially high.

On top of the delay, we have no idea how restrictive the Department of Health’s regulations will be.

If people can get their medicine by growing a plant then why.impose.criminal.penalties.for.growing,it.

Why?

It’s a plant.

It grows.

How, as a rational government, can you ban a plant?

The state government can allow access at the flick of a switch (subject to the cultivation skills of patients and/or their designated caregivers). If the legislature is serious about allowing patients access to cannabis, then it is a no-brainer to legalize individual cultivation immediately with regulatory authority in local governments subject to a clear process for challenging excessive restrictions.

Conclusion

There is no doubt that the Senate Health Committee must explain why there was a need to revise the bill to create a system that seems arbitrarily over-restrictive.

If the Senate insists on the changes described above, then the activists should come back with their own demands.

There is much better legislative option now, the full legalization bill. When a much better full legalization bill is available, there is no reason to accept a bad medical bill.

One thought on “The medical bill: New Yorkers should fight against the amended Senate version – not retreat under fire from the Senate Republicans”

I have to agree that it's insane to ban a plant. In the prohibition of alcohol a small but well organized voting bloc were able to get a law passed because the politicians feared them. We need that kind of fear into politicians whose only goals seem to be to get reelected. I vote on issues like that but alas it just seems you only get the choice between the lesser of two evils.